Judicial vs Administrative Decisions: The Unique Nature of Guardianship Powers

Understanding the Distinction Through Case Law

In July 2019, the Supreme Court of Western Australia delivered an important decision in GS v MS [2019] WASC 255 that dealt with the fundamental nature of guardianship and administration powers.

The case involved MS, who lived in New South Wales, applying to the State Administrative Tribunal (SAT) for guardianship and administration orders over his mother, GS, who lived in Western Australia.

Following the High Court's decision in Burns v Corbett [2018] HCA 15, which ruled that state tribunals cannot exercise jurisdiction in matters "between residents of different States," a constitutional question arose: Did the SAT have jurisdiction to hear these applications?

Chief Justice Quinlan's reasoning provides insights into the distinction between judicial and administrative powers, particularly in the guardianship context.

The Fundamental Distinction: Judicial vs Administrative Decisions

At its core, the distinction between judicial and administrative decisions reflects fundamentally different purposes and processes.

While both involve applying rules to facts, they operate with different objectives and characteristics:

Judicial powers typically:

• Resolve existing disputes about legal rights and obligations

• Determine what rights and obligations currently are

• Apply the law to past events

• Create binding determinations that settle controversies between parties

• Often involve adversarial proceedings

Administrative powers typically:

• Create new rights and obligations for the future

• Determine what rights and obligations should be

• Are protective or regulatory in nature

• Often pursue policy objectives rather than strictly applying existing law

• May be more inquisitorial than adversarial

As Chief Justice Quinlan observed in GS v MS, "judicial power is generally concerned with the ascertainment and enforcement of existing rights and obligations; it involves the determination of what the relevant person's rights or obligations are, not what they should be."

What Makes a Decision "Judicial" in Nature?

Identifying judicial power has challenged courts for generations. In GS v MS, Chief Justice Quinlan cited Justice Kitto's useful formulation from R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8:

"A judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons."

Judicial power generally involves determining existing rights and obligations through the application of law to facts. The closer a power is to this core concept, the more likely it is to be classified as judicial.

In contrast, as the High Court noted in Precision Data Holdings Ltd v Wills [1991] HCA 58: "If the object of the adjudication is not to resolve a dispute about the existing rights and obligations of the parties by determining what those rights and obligations are but to determine what legal rights and obligations should be created, then the function stands outside the realm of judicial power."

The Historical Perspective on Guardianship Powers

Guardianship powers have a unique historical origin that helps explain their administrative nature. As described in GS v MS, the jurisdiction of English courts over both infants and "lunatics" originated not from ordinary judicial power but from the delegation of Royal prerogatives.

In Scott v Scott [1913] AC 417, Viscount Haldane LC observed that in cases of "wards of Court and lunatics," the court's jurisdiction was "parental and administrative." The judge was "administering their affairs, in the exercise of what has been called a paternal jurisdiction delegated to him from the Crown through the Lord Chancellor."

This history reveals that guardianship powers were never conceived as strictly judicial in nature but rather as protective and administrative powers that happened to be exercised by courts.

Why Guardianship and Administration Orders Are Administrative in Nature

Chief Justice Quinlan identified several key reasons why guardianship and administration powers are administrative rather than judicial:

1. Future-oriented: Guardianship orders are not concerned with determining existing rights but with creating new arrangements for future decision-making.

2. Protective function: The proceedings are fundamentally protective in nature, aimed at safeguarding vulnerable individuals rather than resolving disputes.

3. Not inter partes: Although proceedings may be contested, they are not essentially about resolving disputes between parties. As Chief Justice Quinlan noted, "The Tribunal, in hearing a guardianship order or an administration order, does not decide a dispute between the parties; it applies its statutory obligation to act in 'the best interests of [the] person in respect of whom an application is made'."

4. Creation of new rights: The appointment of a guardian creates new legal rights and obligations rather than determining existing ones.

5. Welfare-oriented: The focus is on the person's welfare and best interests, not on competing legal claims.

In PJB v Melbourne Health [2011] VSC 327 (also known as Patrick's Case), Justice Bell similarly concluded that "the functions of the tribunal under the Guardianship and Administration Act to appoint guardians and administrators are administrative in the public law sense."

Implications for Guardianship Practice

The classification of guardianship powers as administrative rather than judicial has significant practical implications:

1. It influences which bodies can exercise these powers. The decision in GS v MS means the SAT can make guardianship and administration orders regardless of where the parties reside, as the constitutional limitation in Burns v Corbett only applies to judicial powers.

2. It shapes the procedures that should be followed. Administrative proceedings can be more flexible, inquisitorial, and welfare-focused than strictly judicial ones.

3. It reinforces the focus on best interests rather than adversarial dispute resolution. Guardianship proceedings should prioritize the welfare of the person rather than treating them as contests between competing parties.

4. It highlights the need for specialized expertise in decision-making bodies beyond strict legal knowledge. Administrative tribunals can incorporate diverse expertise relevant to the welfare of vulnerable persons.

Conclusion

The distinction between judicial and administrative powers may seem technical, but it reflects fundamentally different approaches to decision-making. Guardianship and administration powers, given their protective and future-oriented nature, properly fall within the administrative realm.

As Chief Justice Quinlan concluded in GS v MS [2019] WASC 255, these powers "are not at the core of judicial power." Instead, they represent a unique type of protective jurisdiction with origins in the parens patriae power of the Crown - a power concerned not with settling disputes but with protecting those unable to protect themselves.

Understanding this distinction helps everyone approach guardianship matters with the appropriate focus on welfare and best interests, rather than treating them as conventional legal disputes.

It also ensures these protective mechanisms remain accessible and effective for those who need them most.

Retrospective capacity assessment

Introduction

Retrospective capacity assessment is a process where geriatricians or psychiatrists (often with forensic expertise) evaluate whether an individual had cognitive capacity at a specific point in the past. This is commonly done in legal disputes – for example, to determine if a person with suspected Alzheimer’s disease had the capacity to sign a will or execute a contract years ago. Such assessments are necessary because Alzheimer’s disease is progressive, and capacity may diminish over time. Since the person’s mental state at the past date can no longer be directly examined, experts must reconstruct it using all available evidence (Testamentary capacity | BJPsych Advances | Cambridge Core) (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity). The goal is to provide the court with a professional opinion, grounded in clinical data and observations, about whether the legal criteria for capacity were met at that time.

Methodologies for Retrospective Capacity Assessment

Clinical and Forensic Approach: Retrospective assessments rely on a “neuropsychological autopsy” approach (Neuropsychological autopsy of testamentary capacity) – essentially a posthumous or after-the-fact evaluation of the person’s mental state. The expert (e.g. a forensic psychiatrist or a geriatrician experienced in cognitive disorders) does not have the benefit of interviewing or examining the person at the relevant time, so they act as a detective piecing together information (Testamentary capacity | BJPsych Advances | Cambridge Core). They gather a bundle of evidence from the period in question and often create a detailed timeline of the individual’s health and behavior around the time of the decision in question (Testamentary capacity | BJPsych Advances | Cambridge Core) (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey). This includes identifying any diagnosed conditions (like dementia) or events (e.g. episodes of delirium or strokes) that could affect cognition. The expert then analyzes this evidence in light of clinical knowledge (e.g. the typical course of Alzheimer’s disease) and the legal standards for capacity. Finally, they form an opinion on whether it is more likely than not (“balance of probabilities”) that the person had or lacked capacity at that point (Testamentary capacity | BJPsych Advances | Cambridge Core). Throughout, a forensic methodology is applied – meaning the expert remains objective, uses established guidelines for evaluations, and understands their duty is to assist the court rather than advocate for either side (Testamentary capacity | BJPsych Advances | Cambridge Core) (Testamentary capacity | BJPsych Advances | Cambridge Core).

Sources of Evidence: In a retrospective capacity evaluation, experts draw on many sources to reconstruct past cognitive status (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity) (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey):

• Medical records: General practice (GP) notes, specialist consultations (e.g. neurology, psychiatry, geriatrics), hospital records, and memory clinic files around the time in question (Testamentary capacity | BJPsych Advances | Cambridge Core). These may contain diagnoses (like Alzheimer’s), cognitive test scores, medication history, and physicians’ observations.

• Care records: If the person was in a nursing home or received in-home care, care notes and assessments (for example, any mental capacity assessments done upon care home admission) are reviewed (Testamentary capacity | BJPsych Advances | Cambridge Core) (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey). Social services records or in-home caregiver logs can also provide insight into daily functioning.

• Collateral interviews and testimonies: Statements from family members, friends, neighbors, or caregivers who interacted with the person during that period are considered (Testamentary capacity | BJPsych Advances | Cambridge Core) (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey). These lay witnesses can describe the person’s memory, behavior, and ability to handle tasks at that time. Sometimes even video recordings of the individual (if available) are reviewed to observe their demeanor and cognition (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey).

• Legal and personal documents: The expert will examine documents related to the transaction in question – for example, the will file and the solicitor’s (attorney’s) notes taken when the will was made (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey). Prior wills can be relevant to see any sudden or unusual changes in wishes. Personal correspondence (letters, emails) or notes written by the person around that time might also shed light on their mental clarity.

• Objective tests and data: Any cognitive testing results (e.g. Mini-Mental State Exam scores, neuropsychological testing) performed near that time are invaluable. Laboratory results or brain imaging can be relevant (for instance, ruling out other causes of confusion). Even medications and their dosages are reviewed – an expert will check what drugs the person was taking (e.g. cognitive enhancers or medicines with sedating side effects) to understand their potential impact on cognition (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey). Forensically, details like a sudden change in medication or an acute illness (delirium) at the critical time are carefully noted.

Using these sources, the clinician constructs a narrative of the person’s cognitive state at the time of the transaction. For example, they might note the progression of Alzheimer’s disease by collating reports of memory decline, functional impairment in managing finances, or disorientation in conversations leading up to that date. They then assess this against the legal criteria for capacity (discussed below) to form an opinion. Throughout the process, best practices and any available guidelines are followed to ensure the assessment is systematic and unbiased (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity).

Role of Medical Records in Retrospective Assessment

Contemporaneous medical records are often the cornerstone of a retrospective capacity evaluation. Doctors’ notes made at or around the time in question provide objective, unbiased evidence of the individual’s health and mental status. For instance, a general practitioner’s (GP) records might show that the patient was reporting memory problems, was referred to a memory clinic, or even received a diagnosis of dementia prior to the transaction. Such entries carry significant weight because they were recorded without hindsight and as part of routine care (Testamentary capacity | BJPsych Advances | Cambridge Core).

Medical records can include: diagnoses (e.g. “probable Alzheimer’s disease” noted by a neurologist), cognitive screening scores (perhaps an MMSE or MOCA result with date), and observations of mental state (“patient appeared confused” or “short-term memory poor on exam”). If a memory clinic or specialist saw the person, their assessment letters are crucial – they might detail the level of dementia (mild, moderate, severe) and functional impairments at that time. For example, if a specialist noted in 2015 that the patient had moderate Alzheimer’s with impaired judgment, an expert in 2025 can use that to infer the person’s decision-making capacity in 2015 was likely compromised.

Because of their importance, experts will often comb through years of medical files. As one article notes, GP and secondary care records around the time of the will (or transaction) “can be very helpful” and may amount to thousands of pages (Testamentary capacity | BJPsych Advances | Cambridge Core). Every relevant entry is extracted to build the timeline. In addition to narrative notes, medical data such as lab tests or imaging might be considered – for example, a brain MRI showing significant atrophy (shrinkage) could support the presence of advanced Alzheimer’s at that time. Likewise, medication history is reviewed: if the person had been prescribed cholinesterase inhibitors (like donepezil) or memantine, it indicates a diagnosis of Alzheimer’s disease was made, whereas records of antipsychotic use might hint at behavioral symptoms of dementia or another psychiatric issue.

Medical records are generally given substantial weight in legal proceedings because they are contemporaneous and created by professionals without stake in the legal outcome. A well-documented history of progressive cognitive decline in the charts can strongly support a retrospective diagnosis of Alzheimer’s and resultant lack of capacity. However, the expert must also be cautious: not every note explicitly mentions capacity, and absence of a dementia diagnosis in the records doesn’t always mean the person was cognitively normal (sometimes dementia was present but undocumented). Therefore, experts read “between the lines,” looking for subtle clues (e.g. repeated appointments for forgetfulness, or notes about a family member increasingly managing the patient’s affairs) that suggest cognitive impairment even if Alzheimer’s wasn’t formally diagnosed yet (Testamentary capacity | BJPsych Advances | Cambridge Core). All this medical evidence is synthesized in the expert’s report to conclude, for example, that “on the balance of probabilities, Mr. X was already exhibiting moderate Alzheimer’s disease by mid-2018, which would have impaired his ability to understand and appreciate the transaction in question.”

Weight of Lay Evidence (Family and Caregiver Testimony)

Lay evidence – testimonies and observations from those who knew the person – also plays a role in retrospective assessments. Family members, friends, neighbors, and paid caregivers can often describe the person’s day-to-day functioning around the time in question. For instance, family might recall that “Dad was repeating questions and getting lost driving in 2015” or a caregiver might note that “Mrs. Y needed help managing her finances and often forgot what day it was.” Such firsthand accounts help paint a fuller picture of the individual’s mental capacity in real-world settings, beyond what is written in medical charts.

Experts conducting the retrospective evaluation will typically review witness statements or even conduct interviews to hear these accounts. Consistent reports from multiple sources can corroborate that the person was showing signs of Alzheimer’s (memory loss, confusion, poor judgment) at that time. Lay evidence can be especially useful to fill gaps; for example, if the person had not seen a doctor for a while, the family’s observations might be the only evidence of cognitive decline during that period. Courts do take these narratives into consideration, especially if they are detailed and come from disinterested witnesses (people with no stake in the legal outcome).

That said, lay testimony is generally given less weight than contemporaneous medical evidence (Testamentary capacity | BJPsych Advances | Cambridge Core). There are a few reasons for this. First, memories are fallible – by the time of a court case, relatives might be recalling events years later, and their recollections may be unintentionally distorted. Second, in legal disputes (like will contests), family members often have a vested interest in the outcome, which can consciously or unconsciously bias their testimony. One guide cautions that witness statements “are often less useful and may be subject to bias if prepared on the instructions of one side or the other” (Testamentary capacity | BJPsych Advances | Cambridge Core). In other words, each side in litigation might present a different story of the person’s capacity, colored by their interests.

Due to these concerns, forensic experts treat lay evidence with caution. They will look for consistency: do the caregiver’s notes, the neighbor’s observations, and the daughter’s testimony all align with the medical evidence? If, for example, multiple people describe the individual at the time as having severe memory lapses and inability to recognize relatives, and medical records also show an Alzheimer’s diagnosis, the expert can be more confident in concluding the person lacked capacity. On the other hand, if the only evidence of incapacity is a few family members saying “he seemed off,” but doctors at the time noted intact cognition, the expert (and ultimately the court) may put less stock in the lay statements.

In sum, lay evidence provides context and often vivid examples of the person’s mental functioning, but it is typically weighed alongside and checked against the more objective medical documentation. Strong lay testimony can reinforce a case of lack of capacity (or capacity), but by itself it rarely determines the outcome unless unopposed by other evidence. The court will evaluate the credibility of each witness and how their accounts fit with the clinical picture. Experts will usually comment on the lay observations in their report, noting whether those observations are consistent with the expected effects of Alzheimer’s at that stage. For example, an expert might write that a son’s description of his mother forgetting her own birthday and getting lost in her own home is consistent with moderately advanced Alzheimer’s disease and supports the conclusion that she was not mentally competent to sign legal documents at that time.

Frameworks and Guidelines for Retrospective Evaluation

When conducting a retrospective assessment, experts use established legal criteria for capacity as the framework for their opinion, and they adhere to professional guidelines to ensure a thorough, unbiased approach. The exact criteria for “capacity” depend on the type of decision in question (e.g. making a will, entering a contract, medical consent), but generally these criteria are well-defined in law and guide the evaluation.

For example, the classic legal test for testamentary capacity (capacity to make a will) comes from the case Banks v. Goodfellow (1870). In plain terms, it requires that at the time of making the will, the person: (1) understood the nature and effect of making a will, (2) knew the general extent of their property, (3) could comprehend and appreciate the claims of potential beneficiaries (i.e. who might expect to inherit), and (4) was not suffering from any mental disorder or delusion that distorted their thinking in making the bequests (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey) (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey). An expert assessing a past will-signing will explicitly evaluate whether the person, given their Alzheimer’s disease, likely met these elements. For instance, if due to dementia the person forgot about an entire bank account or a close family member, that would indicate they failed the second or third prong of Banks v Goodfellow. Similarly, other types of capacity (like capacity to enter a contract or to give informed consent) have their own legal tests, often boiling down to the person’s ability to understand, retain, use/weigh information, and communicate a decision (as in the Mental Capacity Act 2005 in England, or similar standards elsewhere).

Professional Guidelines: Forensic and clinical bodies have developed guidance for how to perform these evaluations. In forensic psychiatry, experts are expected to follow the rules of expert evidence in their jurisdiction – for example, in the UK they must follow Civil Procedure Rules for expert witnesses, and in the US an equivalent duty to the court. This means the expert must be impartial, base conclusions on facts and sound reasoning, and disclose any limitations. Courts will only accept retrospective evaluations that are prepared in line with these rules (Testamentary capacity | BJPsych Advances | Cambridge Core). Experts are often encouraged to get specialized training in conducting such assessments because of their complexity (Testamentary capacity | BJPsych Advances | Cambridge Core).

Additionally, over the years clinicians have proposed more specific frameworks to guide retrospective capacity assessments. For instance, researchers have published comprehensive guidelines to improve the validity of retrospective testamentary capacity opinions (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity). One example is the concept of a “neuropsychological autopsy,” which provides a structured method to posthumously evaluate cognition and decision-making capacity (Neuropsychological autopsy of testamentary capacity). This approach, described by Zago and Bolognini (2020), includes systematically reviewing medical and psychosocial history, and even novel techniques like analyzing handwriting samples over time for signs of cognitive decline ( Testamentary capacity assessment in dementia using artificial intelligence: prospects and challenges - PMC ). Another example: Shulman et al. (2021) have outlined best practices gleaned from experience with will contests, emphasizing thorough documentation review, collateral interviews, and use of standardized criteria in forming an opinion (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity) (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity).

In practice, an expert will often structure their report by first stating the legal standard (e.g. the Banks v Goodfellow criteria or the relevant mental capacity statute) and then discussing the evidence in relation to each element. For instance, “Criterion 1: Understanding the nature of a will – Discussion: At the time, Mr. Doe had a diagnosis of Alzheimer’s and doctors noted confusion about his finances; however, the solicitor’s notes indicate he did articulate what a will means. My opinion is that he did understand the nature of making a will.” The expert will go through each capacity component like this. They will also cite any clinical guidelines they followed. For example, they might mention using the American Bar Association/American Psychological Association handbook for assessing older adults’ capacities as a reference, or adhering to the American Academy of Psychiatry and Law’s guideline on forensic evaluation. All of this demonstrates to the court that a systematic, accepted approach was used, lending credibility to the retrospective opinion.

It’s important to note that retrospective assessments are recognized as inherently more challenging and potentially less accurate than contemporaneous evaluations. Guidelines often stress that whenever possible, capacity should be assessed at the time of the decision, because retrospective opinions have to overcome gaps in evidence and fading memories (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity). Indeed, one article observes that while comprehensive retrospective guidelines exist, it is “more reliable and valid” to measure capacity contemporaneously than retrospectively (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity). This is why lawyers sometimes invoke the “Golden Rule” in estate planning (having an older or ill client assessed by a doctor at the time of making a will to create a record of capacity) – such contemporaneous evidence can carry more weight later. Nonetheless, when a retrospective assessment is unavoidable, following a standard framework ensures the expert’s analysis is as rigorous as possible. By using these frameworks and clearly tying their findings to the legal criteria, the expert provides a structured, easy-to-follow opinion for the court.

Case Examples of Retrospective Assessment

Example 1 – Indications of Incapacity: Retrospective evaluations can sometimes clearly reveal that a person lacked capacity due to Alzheimer’s disease. For instance, consider a scenario described in the literature: a testator rewrote his will to exclude his daughter, justifying the disinheritance by claiming he “had not seen her for years.” However, the factual evidence showed that the daughter had frequent contact and was actively supporting him (Testamentary capacity | BJPsych Advances | Cambridge Core). Such a discrepancy between the testator’s stated belief and reality strongly suggested a cognitive impairment. In a retrospective analysis, a psychiatrist noted that the father’s memory and perception were so distorted by dementia that he failed to recognize his daughter’s ongoing presence in his life – a sign that he likely did not comprehend who his natural beneficiaries were. This formed part of the expert’s opinion that the testator lacked testamentary capacity when making that will (Testamentary capacity | BJPsych Advances | Cambridge Core). In court, this kind of retrospective expert evidence, combined with family testimony about the father’s forgetfulness, led to the will being deemed invalid. It shows how an expert can use both medical facts (e.g. diagnosis of Alzheimer’s, known to cause memory delusions) and lay evidence to conclude that the legal criteria for capacity were not met.

Example 2 – Capacity Despite Alzheimer’s: Not every case of Alzheimer’s means incapacity, and retrospective assessments may sometimes support that a person did have capacity at the relevant time. A case example in a psychiatric report involved a 93-year-old woman with a formal diagnosis of mixed Alzheimer’s and vascular dementia (Testamentary capacity | BJPsych Advances | Cambridge Core). She changed her will in 2019 to favor one child who had been caring for her. After her death, her other child challenged the will, alleging she lacked capacity. The retrospective assessment had a lot of evidence to consider: doctors had diagnosed her dementia in 2016 and she was being followed by a memory clinic; a few months after making the new will, her cognitive test score was quite low (Addenbrooke’s Cognitive Examination score of 68/100, indicating moderately severe impairment) (Testamentary capacity | BJPsych Advances | Cambridge Core). On the other hand, the lawyer who drafted the will wrote contemporaneous notes stating he had no concerns about her understanding or decision-making at the time (Testamentary capacity | BJPsych Advances | Cambridge Core). The expert reviewing the case weighed these facts and ultimately opined that, on the balance of probabilities, the woman did have capacity when signing the 2019 will (Testamentary capacity | BJPsych Advances | Cambridge Core). The reasoning was that despite her dementia, she still understood the consequences of making the will, grasped the extent of her estate, and knew she had two children (and consciously decided to benefit the one who lived with her) (Testamentary capacity | BJPsych Advances | Cambridge Core). There was no evidence of delusions influencing her choice. Essentially, the retrospective opinion was that her Alzheimer’s disease had not yet robbed her of the specific understanding and judgment needed for the will. The court, persuaded by this well-substantiated expert report and the solicitor’s testimony, upheld the will. This example illustrates that a nuanced retrospective evaluation can distinguish between having a diagnosis of Alzheimer’s and actually lacking legal capacity – they are not automatically the same, especially in early or moderate stages of the disease (Testamentary capacity | BJPsych Advances | Cambridge Core) (Testamentary capacity | BJPsych Advances | Cambridge Core).

Example 3 – Divergence Between Expert Opinion and Outcome: It’s worth noting that while courts highly value expert retrospective assessments, they are one piece of the puzzle. In some cases, a court may reach a conclusion that differs from the expert’s opinion when other evidence weighs heavily. For example, in Hughes v. Pritchard (2021), an elderly testator’s will was challenged. A contemporaneous medical capacity assessment (following the so-called Golden Rule) had found him capable at the time the will was made, and later on in the lawsuit a jointly-appointed expert psychiatrist also concluded that the testator had testamentary capacity. One might expect these medical opinions to settle the issue. However, the High Court examined all the circumstances – the testator had recently suffered a bereavement and made an abrupt, significant change to his will – and ultimately held the will invalid for lack of capacity despite the medical evidence (How important is an expert’s opinion when seeking to establish testamentary capacity? - Birketts). The judge in that case found that the testator’s grief and cognitive state actually impaired his decision-making more than the experts believed. This demonstrates that retrospective assessments, while critically important, do not guarantee the legal outcome. The court must weigh the expert’s report alongside lay evidence, the credibility of witnesses, and its own application of the legal test. In most instances, a well-founded retrospective evaluation is highly influential, but the final determination of past capacity rests with the judge or jury.

Conclusion

Retrospective capacity assessments are complex endeavors at the intersection of medicine and law. Geriatricians and psychiatrists use clinical and forensic methodologies to retrospectively diagnose conditions like Alzheimer’s disease and evaluate decision-making capacity at a specific point in time. They meticulously review medical records for contemporaneous evidence of cognitive decline, consider lay observations from family and caregivers, and apply standard legal criteria and professional guidelines to ensure a structured and impartial analysis (Testamentary capacity | BJPsych Advances | Cambridge Core) (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity). Each element – clinical data, eyewitness accounts, and established frameworks – contributes pieces to the puzzle of whether the person, more likely than not, understood and appreciated their actions back then. These expert retrospective opinions often carry significant weight in legal proceedings, helping the court reach a just determination about past transactions. Ultimately, by integrating medical science (e.g. the effects of Alzheimer’s on the brain) with legal standards of capacity, such assessments enable fact-finders to make informed decisions about the validity of wills, contracts, or other decisions made by individuals who may have been impaired. The process is rigorous and evidence-driven: medical records provide objective benchmarks, lay testimony adds context, and guidelines keep the evaluation consistent and reliable. In the end, while the court has the final say on a person’s past capacity, it is this careful assembly of clinical and collateral evidence – guided by established methods – that forms the backbone of determining whether Alzheimer’s disease had undermined an individual’s capacity at the relevant moment in time.

Sources:

• Hackett M. et al., BJPsych Advances: Discussion on conducting retrospective testamentary capacity assessments and weighing evidence (Testamentary capacity | BJPsych Advances | Cambridge Core) (Testamentary capacity | BJPsych Advances | Cambridge Core).

• Shulman K. et al., 2021: Emphasis on reviewing records, tests, and testimonies for retrospective capacity, noting guidelines for improving validity (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity) (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity).

• Foot Anstey (law firm) – Using medical experts in testamentary claims: Outline of what documents and information a retrospective capacity assessor examines (medical records, witness statements, prior wills, etc.) (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey) (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey).

• Hackett M. et al., BJPsych Advances (case vignette): Example of a retrospective report in moderate dementia, showing analysis that even with Alzheimer’s, capacity might be intact for specific decisions (Testamentary capacity | BJPsych Advances | Cambridge Core) (Testamentary capacity | BJPsych Advances | Cambridge Core).

• Birketts LLP – Expert’s opinion and testamentary capacity: Noted that courts consider expert evidence but will make an independent judgment (e.g. Hughes v Pritchard case) (How important is an expert’s opinion when seeking to establish testamentary capacity? - Birketts).

Understanding Refundable Accommodation Deposits in Aged Care: Centrelink Implications and Protected Person Considerations

As Australia’s population ages, navigating the financial and legal complexities of residential aged care has become increasingly critical.

For families in Western Australia, understanding refundable accommodation deposits (RADs), their interplay with Centrelink assessments, and the role of protected persons is essential for making informed decisions.

This article synthesizes legislative frameworks, financial strategies, and guardianship considerations to provide clarity on these interconnected topics.

Refundable Accommodation Deposits: An Overview

Refundable Accommodation Deposits (RADs) are lump-sum payments made to aged care providers to secure accommodation for residents.

Under the Aged Care Act 1997, these deposits must be refunded in full (minus agreed deductions) within 14 days of a resident’s departure or death[1][11].

Residents may also opt for daily accommodation payments (DAPs), which represent interest on the unpaid RAD, calculated using the Maximum Permissible Interest Rate (MPIR)[7].

The choice between RAD and DAP hinges on factors like liquidity, estate planning, and means-testing outcomes[2][13].

Providers may use RADs for capital expenditures, such as constructing new facilities, but not for operational costs like staff wages[6].

This distinction ensures RADs remain protected assets, though their strategic use can influence aged care fees and pension entitlements.

Centrelink Treatment of RADs: Exemptions and Means Testing

Age Pension Assessments

For Centrelink’s Age Pension purposes, RADs are exempt from the assets test.

This exemption allows pensioners to retain higher Age Pension entitlements despite holding substantial lump sums[4][13].

For example, a resident paying a $500,000 RAD would not have this amount counted toward their asset threshold, potentially preserving their full pension[2].

Aged Care Means-Tested Care Fees

Contrastingly, RADs are included in the aged care means test, directly affecting the daily means-tested care fee (MTCF).

The MTCF calculation blends income and asset assessments, with RADs contributing to the latter[4][9].

A higher RAD increases the assets-tested component, potentially raising MTCF liabilities.

This dual treatment underscores the need for financial advice before committing to a RAD[9][13].

The Role of Protected Persons in Aged Care Planning

A “protected person” is an individual whose continued residence in the family home exempts the property from aged care means testing.

Under the Aged Care Act, protected persons include:

1. Partners - residing in the home.

2. Dependent children - under 18 or full-time students under 25.

3. Carers who have lived in the home for ≥2 years and receive income support.

4. Close relatives eligible for income support who have resided in the home for ≥5 years[5][10].

Impact on Aged Care Fees

If a protected person remains in the home, its value is disregarded in the aged care assets test, reducing MTCF obligations. For instance, a home valued at $800,000 with a protected occupant would not inflate the resident’s assessable assets[5][10]. However, Centrelink treats the home differently: after two years in care, the property is assessed unless a protected person (e.g., a spouse) remains[5][13].

Case Study: Balancing RAD Payments and Protected Person Status

Consider Mary, a single aged pensioner with a $800,000 home and $30,000 savings. Upon entering care, she opts for a $500,000 RAD.

- Centrelink Impact: Her RAD is exempt, preserving her Age Pension.

- Aged Care Impact: The RAD increases her assets-tested MTCF.

- Protected Person Scenario: If Mary’s brother (a carer receiving JobSeeker) remains in the home, the property is exempt from aged care assessments, lowering her MTCF[5][10].

Without a protected person, selling the home after two years would trigger Centrelink’s asset test, disqualifying her pension until the RAD is paid[10][13].

Sources

[1] Aged care home accommodation refunds https://www.myagedcare.gov.au/aged-care-home-accommodation-refunds

[2] Paying a parent's aged care accommodation costs | BT Professional https://www.bt.com.au/professional/knowledge-centre/client-strategies/retirement-strategies/paying-for-a-parents-aged-care.html

[3] Adult Guardianship (WA) - Court Lawyers https://www.gotocourt.com.au/civil-law/wa/adult-guardianship/

[4] Refundable Accommodation Deposit Assets Test Explained https://www.corevalue.com.au/refundable-accommodation-deposit-assets-test/

[5] What Is a Protected Person For Aged Care & Who Qualifies? https://www.corevalue.com.au/protected-person-aged-care/

[6] Permitted use of refundable deposits | Aged Care Quality and Safety ... https://www.agedcarequality.gov.au/providers/financial-prudential-standards/permitted-use-refundable-deposits

[7] RAD and DAP Frequently asked questions - Simply Retirement https://simplyretirement.com.au/aged-care-accommodation-payments-faqs

[8] Enduring Power of Guardianship - Government of Western Australia https://www.wa.gov.au/organisation/department-of-justice/office-of-the-public-advocate/enduring-power-of-guardianship

[9] Means assessment for residential aged care https://www.health.gov.au/our-work/residential-aged-care/charging/means-assessment

[10] Protected Person Status - General - Aged Care 101 https://forum.agedcare101.com.au/t/protected-person-status/773

[11] Refunding lump sums in residential aged care https://www.health.gov.au/our-work/residential-aged-care/charging/refunds

[12] Appoint a guardian or administrator https://www.sat.justice.wa.gov.au/A/appoint_a_guardian_or_administrator.aspx

[13] Aged Care Tips and Strategies - Financial Decisions https://financialdecisions.com.au/aged-care-tips-and-strategies/

[14] [PDF] Guardianship - Legal Aid WA https://www.legalaid.wa.gov.au/sites/default/files/inline-files/Video-Fact-Sheet-Guardianship.pdf

[15] FIS aged care refundable accommodation deposits (RADs) video https://www.servicesaustralia.gov.au/fis-aged-care-refundable-accommodation-deposits-rads-video?context=21836

[16] What is a Refundable Accommodation Deposit (RAD)? https://agedcaredecisions.com.au/what-is-a-rad/

[17] [DOC] video-transcript-refundable-accommodation-deposits.docx http://www.servicesaustralia.gov.au/sites/default/files/video-transcript-refundable-accommodation-deposits.docx

[18] Guardianship and administration | Legal Aid WA https://www.legalaid.wa.gov.au/find-legal-answers/managing-your-affairs/guardianship-and-administration

[19] Refundable accommodation deposits (RADs) - IHACPA https://www.ihacpa.gov.au/aged-care/refundable-accommodation-deposits-rads

[20] [PDF] Guardianship and Administration Act 1990 https://www.legislation.wa.gov.au/legislation/statutes.nsf/RedirectURL?OpenAgent&query=mrdoc_44836.pdf

[21] Refunding refundable deposits | Aged Care Quality and Safety ... https://www.agedcarequality.gov.au/resource-library/refunding-refundable-deposits

[22] Guardianship: OPA information - Government of Western Australia https://www.wa.gov.au/organisation/department-of-justice/office-of-the-public-advocate/guardianship-opa-information

[23] West Perth Accommodation Payments - Rosewood aged care https://rosewoodcare.org.au/aged-care-facilities/west-perth/accommodation-payments/

[24] [PDF] Guardianship and Administration Act 1990 https://www.legislation.wa.gov.au/legislation/prod/filestore.nsf/FileURL/mrdoc_28305.pdf/$FILE/Guardianship%20and%20Administration%20Act%201990%20-%20%5B05-j0-02%5D.pdf?OpenElement

[25] Understanding aged care home accommodation costs https://www.myagedcare.gov.au/understanding-aged-care-home-accommodation-costs

[26] CAP-02 Incapable Persons - Landgate https://www.landgate.wa.gov.au/land-and-property/land-transactions-hub/land-transaction-policy-and-procedure-guides/land-titles/proprietor/cap-02-incapable-persons/

[27] Aged care carer or close relative assessment - Services Australia https://www.servicesaustralia.gov.au/aged-care-carer-or-close-relative-assessment-for-aged-cost-care?context=23296

[28] Understanding Aged Care Costs: Unpacking the RAD & Its Impact ... https://www.laterlifeadvice.com.au/our-blog/refundable-accomodation-deposit

[29] The “protected person rule” – what happens if your spouse remains ... https://attwoodmarshall.com.au/the-protected-person-rule-when-does-it-apply/

[30] Assets test for Age Pension - Services Australia https://www.servicesaustralia.gov.au/assets-test-for-age-pension?context=22526

[31] Income and means assessments | My Aged Care https://www.myagedcare.gov.au/income-and-means-assessments

[32] Aged care: how a protected person protects the family home – CPSA https://cpsa.org.au/article/aged-care-how-a-protected-person-protects-the-family-home/

[33] Western Australian Enduring Power of Guardianship https://legalconsolidated.com.au/wa-medical-poa/

[34] Changes to aged care fees, annual and lifetime caps https://www.myagedcare.gov.au/changes-aged-care-fees-annual-and-lifetime-caps

Understanding the Diagnostic Process for Alzheimer’s Disease: A Comprehensive Guide for Western Australians

Alzheimer’s disease, the most common form of dementia, represents a significant challenge for individuals, families, and healthcare systems worldwide.

In Western Australia, where approximately 40,000 people live with dementia, understanding the diagnostic process is critical for early intervention and legal planning[13][15].

This article synthesizes the latest clinical guidelines, biomarker advancements, and diagnostic tools to explain how Alzheimer’s disease is identified and confirmed.

The Shift to Biological Diagnosis: Core Biomarkers and Revised Criteria

Historically, Alzheimer’s disease could only be definitively diagnosed postmortem through the identification of amyloid plaques and neurofibrillary tangles in brain tissue[8].

However, the 2024 revised criteria from the Alzheimer’s Association Workgroup have revolutionized diagnosis by emphasizing **biological markers** (biomarkers) that detect the disease years before symptoms appear[1]. These biomarkers fall into two categories:

Core 1 Biomarkers: Early Detection and Diagnostic Certainty

Core 1 biomarkers include amyloid PET scans, cerebrospinal fluid (CSF) analysis, and plasma tests for phosphorylated tau 217 (p-tau217).

These tools identify the presence of Alzheimer’s neuropathological change (ADNPC), which encompasses both amyloid plaques and tau tangles[1][12]. For example:

- Amyloid PET scans visualize amyloid-beta deposits in the brain, with abnormal results strongly correlating with AD pathology[3][10].

- CSF tests measure amyloid-beta 42, total tau, and p-tau levels, providing a 90% accuracy rate in predicting amyloid positivity[2][16].

- Blood-based biomarkers like p-tau217 now offer comparable accuracy to CSF testing, enabling accessible screening through services like Western Diagnostic Pathology’s PrecivityAD2™ test in Perth[7][16].

An abnormal Core 1 biomarker result is sufficient for an Alzheimer’s diagnosis, even in asymptomatic individuals, reflecting the disease’s biological onset[1][8].

Core 2 Biomarkers: Tracking Progression and Staging

Core 2 biomarkers, such as tau PET scans and neurofilament light chain (NfL) measurements, become abnormal later in the disease course.

These help clinicians predict symptom onset and monitor neurodegeneration[1][3].

For instance, tau PET scans reveal the spread of neurofibrillary tangles from the medial temporal lobe to cortical regions, which correlates with cognitive decline[10].

Clinical Evaluation: Ruling Out Reversible Causes

Comprehensive Medical History and Physical Examination

The diagnostic journey begins with a detailed medical history, including psychiatric conditions, medication use, and family history of dementia[2][14].

GPs in WA follow the RACGP Silver Book guidelines, which mandate:

- Reviewing cardiovascular risk factors (e.g., hypertension, diabetes) linked to vascular dementia[6].

- Exposing alcohol misuse or vitamin deficiencies (B12, folate) that mimic dementia symptoms[14].

- Assessing for depression, which presents as “pseudodementia” in 15–20% of cases[11][15].

A neurological exam evaluates reflexes, coordination, and sensory function to identify stroke, tumors, or Parkinson’s disease[5][8]. Blood tests rule out thyroid dysfunction, infections, and metabolic disorders[2][14].

Cognitive and Functional Assessments: Beyond Memory Testing

Standardized Cognitive Screening Tools

The Montreal Cognitive Assessment (MoCA) and Mini-Mental State Examination (MMSE) are widely used in WA clinics to evaluate:

- Short-term memory (e.g., recalling three words after five minutes).

- Executive function (e.g., trail-making tests).

- Language skills (e.g., naming objects)[2][9].

However, these tests have limitations.

A score of 25/30 on the MMSE may miss early Alzheimer’s, prompting specialists to use more sensitive tools like the CANTAB Mobile® battery, which assesses paired associative learning and spatial working memory[9][10].

Behavioral and Psychological Evaluations

The Neuropsychiatric Inventory Questionnaire (NPI-Q) identifies agitation, apathy, or sleep disturbances that support an Alzheimer’s diagnosis and guide non-pharmacological interventions[2][15].

Neuroimaging: Visualizing Brain Changes

Structural MRI and CT Scans

Structural imaging remains a cornerstone in WA’s diagnostic workflow to exclude subdural hematomas, tumors, or hydrocephalus. MRI findings in Alzheimer’s typically show:

- Hippocampal atrophy: A 20–30% volume loss in early stages[10][12].

- Cortical thinning: Particularly in parietal and temporal lobes[10].

Advanced PET Imaging

Amyloid and tau PET scans are available through tertiary centers like Royal Perth Hospital. Studies show amyloid PET positivity in 85% of clinically diagnosed Alzheimer’s cases, while tau PET correlates with cognitive decline rates[3][8].

Cerebrospinal Fluid and Blood Biomarkers: A Game Changer for WA Patients

Lumbar Puncture and CSF Analysis

CSF testing via lumbar puncture measures amyloid-beta 42 (low levels indicate plaque formation) and p-tau (elevated in tangle pathology).

The FDA-approved Lumipulse® and Elecsys® assays standardized these measurements, reducing inter-lab variability[2][12].

Blood-Based Testing: The PrecivityAD2™ Innovation

Western Diagnostic Pathology’s PrecivityAD2™ test, available at select WA collection centers, measures plasma p-tau217 and amyloid-beta 42/40 ratio.

This non-invasive tool achieves 85–90% concordance with amyloid PET, enabling GPs to initiate referrals without specialist waitlists[7][16].

Putting It All Together: Australia’s Diagnostic Guidelines

The Clinical Practice Guidelines and Principles of Care for People with Dementia (2016, updated 2023) provide a roadmap for WA clinicians[4][15]:

1. Timely diagnosis: Cognitive testing within 4 weeks of symptom report.

2. Biomarker integration: Use CSF/blood tests for atypical cases.

3. Multidisciplinary collaboration: Involve neurologists, geriatricians, and neuropsychologists.

4. Ethical communication: Disclose diagnosis with sensitivity, avoiding terms like “senility”[11][15].

Conclusion: The Future of Diagnosis in WA

With blood biomarkers and AI-driven cognitive tests revolutionizing early detection, WA’s healthcare system is poised to reduce diagnostic delays.

For families, understanding this process demystifies Alzheimer’s and underscores the importance of legal preparedness.

As research advances, the integration of emerging tools like retinal amyloid imaging and digital gait analysis promises even greater precision in the years ahead[12][16].

By synthesizing clinical evaluations, biomarkers, and imaging, clinicians can now diagnose Alzheimer’s with >95% accuracy during life—a paradigm shift empowering patients and families to plan with clarity[1][8][16].

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[3] Regional variability of imaging biomarkers in autosomal dominant ... https://www.pnas.org/doi/10.1073/pnas.1317918110

[4] Clinical guidelines for dementia https://cdpc.sydney.edu.au/research/clinical-guidelines-for-dementia/

[5] Alzheimer's Disease Fact Sheet | National Institute on Aging https://www.nia.nih.gov/health/alzheimers-and-dementia/alzheimers-disease-fact-sheet

[6] [PDF] RACGP aged care clinical guide (Silver Book) https://www.racgp.org.au/getattachment/af2d2506-9c65-43ab-a442-319a56f12fb7/Dementia.aspx

[7] Western Diagnostic Pathology - Pathology diagnostics & testing ... https://www.wdp.com.au

[8] Alzheimer's disease - Diagnosis and treatment - Mayo Clinic https://www.mayoclinic.org/diseases-conditions/alzheimers-disease/diagnosis-treatment/drc-20350453

[9] 7 tests for assessing cognition in early Alzheimer's disease https://cambridgecognition.com/7-tests-for-assessing-cognition-in-early-alzheimers-disease/

[10] Current understanding of magnetic resonance imaging biomarkers ... https://alz-journals.onlinelibrary.wiley.com/doi/10.1016/j.trci.2018.04.007

[11] Clinical practice guidelines and principles of care for people with ... https://www.racgp.org.au/afp/2016/december/clinical-practice-guidelines-and-principles-of-car

[12] Detection and treatment of Alzheimer's disease https://alzheimerswa.org.au/detection-and-treatment-of-alzheimers-disease/

[13] Dementia in Australia, How is dementia diagnosed? https://www.aihw.gov.au/reports/dementia/dementia-in-aus/contents/understanding-dementia/how-is-dementia-diagnosed

[14] Tests used in diagnosing dementia - Healthdirect https://www.healthdirect.gov.au/tests-used-in-diagnosing-dementia

[15] Clinical practice guidelines for dementia in Australia https://www.mja.com.au/journal/2016/204/5/clinical-practice-guidelines-dementia-australia

[16] Alzheimer's disease and PrecivityAD2™ blood test | WDP https://www.wdp.com.au/tests/precivityad2

[17] Dementia in Australia, National policy response to dementia https://www.aihw.gov.au/reports/dementia/dementia-in-aus/contents/national-policy-response-to-dementia

[18] Alzheimer's disease - Diagnosis - NHS https://www.nhs.uk/conditions/alzheimers-disease/diagnosis/

[19] How Alzheimer's is diagnosed - Mayo Clinic https://www.mayoclinic.org/diseases-conditions/alzheimers-disease/in-depth/alzheimers/art-20048075

[20] Cognitive Screening and Assessment | Alzheimer's Association https://www.alz.org/professionals/health-systems-medical-professionals/cognitive-assessment

[21] Molecular and Imaging Biomarkers in Alzheimer's Disease: A Focus ... https://pmc.ncbi.nlm.nih.gov/articles/PMC7565667/

[22] Alzheimer's Disease: Symptoms & Treatment - Cleveland Clinic https://my.clevelandclinic.org/health/diseases/9164-alzheimers-disease

[23] How Is Alzheimer's Disease Diagnosed? | National Institute on Aging https://www.nia.nih.gov/health/alzheimers-symptoms-and-diagnosis/how-alzheimers-disease-diagnosed

[24] Tests and scans to diagnose dementia - Alzheimer's Society https://www.alzheimers.org.uk/about-dementia/symptoms-and-diagnosis/dementia-diagnosis/how-to-get-dementia-diagnosis/tests-and-scans

[25] How Biomarkers Help Diagnose Dementia | National Institute on Aging https://www.nia.nih.gov/health/alzheimers-symptoms-and-diagnosis/how-biomarkers-help-diagnose-dementia

[26] [PDF] Clinical Practice Guidelines and Principles of Care for People with ... https://cdpc.sydney.edu.au/wp-content/uploads/2019/06/CDPC-Dementia-Guidelines_WEB.pdf

[27] Alzheimer's disease - symptoms, causes, diagnosis and prevention https://www.healthdirect.gov.au/alzheimers-disease

[28] Alzheimer's disease - HealthyWA https://healthywa.wa.gov.au/Articles/A_E/Alzheimers-disease

[29] Assessment and diagnosis of dementia https://www.dementia.org.au/professionals/assessment-and-diagnosis-dementia

[30] The difficulty in getting a diagnosis - Alzheimer's WA https://alzheimerswa.org.au/the-difficulty-in-getting-a-diagnosis/

[31] Testing and diagnosis - Dementia Australia https://www.dementia.org.au/about-dementia/dementia-test-and-diagnosis

[32] Dementia - Alzheimer's disease - Better Health Channel https://www.betterhealth.vic.gov.au/health/conditionsandtreatments/dementia-alzheimers-disease

[33] ADNeT Memory and Cognition Clinic Guidelines https://www.australiandementianetwork.org.au/initiatives/memory-clinics-network/adnet-memory-and-cognition-clinic-guidelines/

When Costs Agreements Become Void: Consequences at Assessment Under the Uniform Law

Introduction

The Legal Profession Uniform Law has significantly changed how costs agreements are treated when disclosure obligations aren't met. Three recent Victorian Supreme Court decisions – Johnston v Dimos Lawyers [2019] VSC 462, Bennett (a pseudonym) v Farrar Gesini Dunn Pty Ltd [2019] VSC 744, and Shi v Mills Oakley [2020] VSC 498 – provide valuable insights into the consequences of non-compliance. Each case involved disputes over legal costs where the law firm had failed to provide adequate costs disclosure. In Johnston, a client disputed the costs of Family Law proceedings totalling approximately $253,000. In Bennett, an applicant challenged costs of approximately $490,000 for Family Law matters. In Shi, a Chinese national disputed costs of around $267,000 for commercial litigation.

The Harsh Reality of Non-Compliance

Under the Legal Profession Uniform Law, the consequences of non-compliance with disclosure obligations are significantly more severe than under previous legislation. Section 178(1)(a) explicitly states that if a law practice contravenes disclosure obligations, "the costs agreement concerned (if any) is void."

As Associate Justice Wood stated in Johnston v Dimos Lawyers: "Any failure to comply with any of the provisions in relation to disclosure in Part 4.3 of the Act renders the costs agreement void. Non-compliance therefore equals void. There is no discretion to be exercised around 'substantial' compliance."

This represents a marked departure from the previous Legal Profession Act 2004 (Vic), where disclosure failures might merely result in a discount of costs at the conclusion of taxation rather than invalidating the agreement entirely.

What Makes a Costs Agreement Void?

Section 174 of the Uniform Law mandates that a law practice must:

• Provide an initial estimate of total legal costs (including disbursements) when instructions are first given

• Update this estimate when there is a significant change to anything previously disclosed

• Provide these disclosures in writing

Common failures that have rendered costs agreements void include:

• Not providing any written estimate of total costs

• Excluding disbursements from cost estimates

• Not updating estimates when matters change significantly

• Using confusing or inconsistent methods to calculate estimates

• Providing estimates that are unreasonably low compared to actual costs

• Not disclosing increases in hourly rates

Consequences at Assessment: Not Always Catastrophic

Interestingly, while non-compliance renders a costs agreement void, this doesn't necessarily mean the law practice must fall back to court scales or minimum rates. As the three cases demonstrate, courts still have considerable discretion in determining the appropriate basis for assessment.

In Johnston v Dimos Lawyers, despite finding the costs agreement void, Associate Justice Wood determined that the costs should still be assessed using the hourly rates specified in that agreement. This approach was described as fair since the client had been given "a surprisingly accurate oral estimate of total legal costs" from the outset.

Similarly, in Bennett v Farrar Gesini Dunn, the Court found that "although both the First Costs Agreement and the Deferred Costs Agreement are void, as a general principle the respondent's costs are to be assessed on the basis of the hourly rates specified in them and counsel fees are to be assessed on the basis that they were rendered."

However, in Shi v Mills Oakley, Judicial Registrar Gourlay took a more nuanced approach. The Court held that for work undertaken in 2016 and 2017, costs should be assessed based on the rates in the void costs agreement. But for work after March 2018 (when County Court proceedings were issued), costs should be assessed using the County Court scale of costs. This reflected the Court's view that a new retainer had effectively commenced, requiring fresh disclosure.

Factors Courts Consider When Determining Assessment Basis

When deciding how to assess costs where a costs agreement is void, courts typically consider:

1. Whether the client was adequately informed about costs, even if technical disclosure requirements weren't met

2. Whether the rates in the void agreement were reasonable for the work performed

3. Whether the client had complained about costs during the retainer

4. The nature and complexity of the legal matter

5. Whether significant changes in circumstances justified fresh disclosure

6. The experience and specialisation of the legal practitioners

As noted in Johnston: "Irrespective of whether there is, or is not, a valid Costs Agreement the Court still has an obligation to determine what is fair, reasonable and proportionate" under section 172(1) of the Uniform Law.

Practical Implications for Practitioners

These cases highlight the critical importance of rigorous compliance with disclosure obligations. Law practices should:

1. Provide comprehensive written cost estimates at the commencement of all matters

2. Include all foreseeable disbursements in total cost estimates

3. Regularly review and update estimates when circumstances change

4. Document all communications about costs

5. Consider issuing new costs agreements when the nature of a matter changes significantly

6. Disclose rate increases promptly and in writing

As stated in Shi v Mills Oakley, there is "a prevalent misconception in the profession" about what constitutes adequate disclosure: "Demands for progress payments or the delivery of regular invoices for work already completed do not satisfy the Act."

Conclusion

While non-compliance with disclosure obligations automatically renders costs agreements void under the Uniform Law, courts retain discretion to assess costs on a fair and reasonable basis. The rates in void agreements may still be applied if appropriate, but practitioners should not rely on judicial discretion to save them from disclosure failures. The strict approach taken by courts underscores the importance of meticulous compliance with all disclosure obligations from the outset of any retainer and throughout the client relationship.

As Justice Wood aptly stated in Johnston v Dimos, "Non-compliance therefore equals void." The best practice is to ensure compliance from the start, rather than hoping for a favourable assessment after the fact.

Scope and Costs Estimates in Legal Retainers: Lessons from Shi v Mills Oakley

Introduction: A Cautionary Tale

The Supreme Court of Victoria's decision in Shi v Mills Oakley [2020] VSC 498 serves as a stark reminder of the critical importance of proper costs disclosure and agreement in legal practice. The case involved a Chinese national with limited English proficiency who retained Mills Oakley initially to assist with the sale of shares in his company. What began as a commercial transaction evolved into complex litigation when the purchaser, Mr Wu, issued proceedings against Mr Shi in the County Court. When the matter concluded, the total legal costs exceeded $267,000—far beyond initial estimates—and the law firm's costs agreement was deemed void for non-compliance with disclosure obligations under the Legal Profession Uniform Law.

The Importance of Proper Scope Definition

One of the fundamental issues in Shi v Mills Oakley was the failure to properly redefine the scope of work when the matter evolved significantly. The initial costs agreement provided an estimate of $50,000 (plus disbursements and GST) for what was essentially pre-litigation commercial work. However, when Mr Wu issued proceedings in February 2018, the nature of the retainer fundamentally changed.

Judicial Registrar Gourlay stated in paragraph 45 of the judgment: "It may be reasonable to consider that, when the County Court proceeding was issued, a new retainer began that warranted a new costs agreement and costs disclosure being given considering that the change in the applicant's instructions was so substantial and Mr Wu commencing proceedings was unexpected after 12 months."

When Does a New Retainer Come into Being?

The Shi case provides valuable guidance on when a new retainer may be considered to have come into existence, requiring fresh costs disclosure. The court identified several key factors:

1. Substantial change in scope: When the nature of the legal services changes significantly from what was originally contemplated (in Shi, from commercial dispute to litigation defence)

2. Passage of time: The court noted the 10-month gap in work before the County Court proceedings as significant

3. New explicit instructions: Receipt of instructions to undertake work substantially different from the original retainer (defending formal proceedings versus negotiating a commercial dispute)

4. Unexpected developments: Events that weren't reasonably foreseeable at the time of the original retainer

Judicial Registrar Gourlay concluded at paragraph 46 that "on the receipt of instructions to defend the Writ a new matter and a new retainer began. Therefore, any earlier costs estimate, including the one given on 11 November 2016, that did not consider the possibility of defending proceedings against Mr Shi has failed to comply with the disclosure requirements of s 174(1)(a) and (b)."

Legal Requirements for Costs Disclosure Under the Uniform Law

The case turned on the interpretation of sections 174 and 178 of the Legal Profession Uniform Law. Section 174(1) requires a law practice to:

• Provide the client with information disclosing the basis on which legal costs will be calculated and an estimate of total legal costs; and

• Provide updated information promptly when there is any significant change to anything previously disclosed.

Importantly, "legal costs" is defined in section 6 to include disbursements—a point that Mills Oakley failed to address adequately in their estimate. The court noted that each estimate specifically excluded disbursements, contrary to the definition of "legal costs" under the Act.

Updating Costs Estimates When Circumstances Change

The most significant lesson from Shi v Mills Oakley relates to the obligation to provide updated costs disclosures when circumstances change materially. Despite the matter evolving from a commercial dispute into full-blown litigation spanning multiple days of trial, the law firm's updates were found to be inconsistent and inadequate.

The court noted at paragraph 44 that: "It is clear that an estimate of total legal costs was never provided to the applicant. Each of the costs disclosures given were limited in some way or other by making reference to earlier conversations or by only disclosing future legal costs that excluded some disbursements."

The court was particularly critical of the practice of referring to earlier verbal estimates from 16 months prior, and of providing estimates that excluded foreseeable disbursements such as interpreters, subpoena costs, and transcript fees.

Consequences of Non-Compliance: The Void Agreement

The consequences of failing to comply with disclosure obligations are severe and non-discretionary. Section 178(1) plainly states that if a law practice contravenes the disclosure obligations, "the costs agreement concerned (if any) is void."

The court rejected the law firm's arguments that the approach to disclosure requirements should be "moderated by the fact that nobody knows the future." Citing Johnston v Dimos Lawyers [2019] VSC 462, Judicial Registrar Gourlay emphasized at paragraph 43 that: "Any failure to comply with any of the provisions in relation to disclosure in Part 4.3 of the Act renders the costs agreement void. Non-compliance therefore equals void. There is no discretion to be exercised around 'substantial' compliance."

The practical effect in Shi was that costs for work undertaken in 2016 and 2017 were to be taxed at the rates in the costs agreement, but costs for work after March 2018 (when the matter significantly changed) would be taxed on the County Court scale.

Distinguishing Johnston v Dimos Lawyers

The court distinguished Shi from Johnston v Dimos Lawyers [2019] VSC 462, where a costs agreement was also held void but costs were assessed by reference to the rates in the void agreement. In Johnston, the client had been given "a surprisingly accurate estimate of total legal costs" from the outset, and the non-compliance was considered "technical" in nature (a verbal rather than written estimate).

By contrast, in Shi, the estimates were neither accurate nor comprehensive, with no evidence that the law firm took steps to ensure the client (who had limited English proficiency) understood the costs implications as required by section 174(3).

Best Practices for Practitioners

To avoid finding yourself in a similar situation, consider these best practices:

1. Provide comprehensive initial estimates: Ensure estimates include all foreseeable costs, including disbursements, and are based on clearly disclosed charge rates.

2. Document all costs discussions: Unlike in Johnston v Dimos Lawyers where the law firm had detailed file notes of verbal cost estimates, Mills Oakley failed to produce documentation supporting their claimed discussions.

3. Recognise when a new retainer exists: When a matter fundamentally changes in scope, involves a significant time gap, requires substantially different work, or encounters unexpected developments, issue a new costs agreement rather than simply updating the old one.

4. Provide regular, written updates: Section 174(6) mandates that disclosures be in writing. Verbal estimates, while valuable, do not satisfy the statutory requirements.

5. Include all elements of "legal costs": Remember that "legal costs" include disbursements—excluding them from an estimate contravenes the Act.

6. Document client understanding: Section 174(3) requires that the law practice "take all reasonable steps to satisfy itself that the client has understood and given consent to the proposed course of action for the conduct of the matter and the proposed costs."

Conclusion

The Shi v Mills Oakley decision emphasises that costs disclosure is not merely an administrative burden but a cornerstone of the solicitor-client relationship. The court's analysis provides valuable guidance on when a new retainer comes into existence, requiring fresh costs disclosure—particularly when litigation commences unexpectedly after a period of relative inactivity.

Practitioners should view proper disclosure as an opportunity to build trust and clarity with clients. When scope changes significantly, a new retainer is likely formed, requiring a new costs agreement with comprehensive, written estimates that include all elements of legal costs as defined by the Act.

Failure to recognise when a new retainer has formed and to provide appropriate disclosure not only risks rendering your costs agreement void but may also damage the client relationship and potentially constitute unsatisfactory professional conduct.

In an environment where clients are increasingly cost-conscious, the lessons from Shi v Mills Oakley [2020] VSC 498 serve as a valuable reminder that clarity in costs is not just good practice—it's the law.

The "Interests of Justice" Exception in Defamation Costs Awards

Introduction: McIntosh v Peterson

The recent Western Australian Supreme Court decision in McIntosh v Peterson [No 3] [2024] WASC 446 provides valuable insights into how courts apply the "interests of justice" exception when awarding costs in defamation matters. In this case, veterinary clinic owners Andrew and Kay McIntosh, along with their business For Paws and Feathers Pty Ltd, sued animal rights activist Natasha Peterson, Jack Higgs, and V-Gan Booty Pty Ltd over a defamatory Facebook post. While the McIntoshes succeeded against Peterson and Higgs (receiving damages totalling $280,000), the claim against V-Gan Booty was dismissed, as were claims for injurious falsehood and civil conspiracy. When it came to costs, Chief Justice Quinlan had to navigate the complex interplay between statutory provisions, litigation conduct, and competing interests to determine the appropriate costs order.

The Statutory Costs Regime in Defamation Law

Defamation law in Australia provides a specific costs regime that differs from the usual "costs follow the event" principle. Section 40 of the Defamation Act 2005 (WA) creates a presumption in favour of indemnity costs in certain circumstances but subjects this to the overriding "interests of justice" exception.

Under s 40(2)(a), if defamation proceedings are successfully brought and the court is satisfied that the defendant "unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff," the court must order costs to be assessed on an indemnity basis - "unless the interests of justice require otherwise."

This "interests of justice" exception gives courts significant discretion to consider broader factors when determining costs, even where the statutory trigger for indemnity costs has been activated.

When Do the "Interests of Justice" Override the Presumption?

In McIntosh v Peterson [No 3], Chief Justice Quinlan found that the defendants had unreasonably failed to make a reasonable settlement offer. The defendants' offers of just $2,000 were found to be unreasonable in the circumstances, given that the plaintiffs had already suffered adverse effects and incurred costs. This triggered the presumption in favour of indemnity costs under s 40(2)(a).

However, His Honour went on to find that "the interests of justice require otherwise" for several important reasons:

1. The way parties conducted their cases: Section 40(1)(a) expressly allows the court to consider "the way in which the parties to the proceedings conducted their cases." In this case, the plaintiffs' counsel conducted cross-examination of Ms. Peterson in a particularly problematic manner by making unfounded allegations about her tax affairs. The cross-examination suggested she had declared only $70,000 in receipts from OnlyFans when her actual receipt was $385,000, implying tax fraud. In reality, Ms. Peterson had properly declared all income across her personal and company tax returns. This unfair attack on Ms. Peterson's character was reported in the media, causing reputational harm beyond the proceedings themselves.

2. Mixed success: The plaintiffs were wholly unsuccessful against V-Gan Booty Pty Ltd and failed in two entire causes of action (injurious falsehood and civil conspiracy).

3. Focus of the litigation: The plaintiffs' case had significant focus on Ms. Peterson's financial affairs and V-Gan Booty Pty Ltd's OnlyFans business, which the court found "permeated the plaintiffs' case" but was ultimately unnecessary to establish their defamation claims.

Understanding "Conducting a Case" in Context

The concept of how a party "conducts their case" is particularly important in defamation proceedings, where litigation tactics can significantly affect both the course of the proceedings and reputational impacts beyond the courtroom.

In McIntosh, the plaintiffs' conduct of their case extended beyond merely presenting their claims. Their litigation approach included:

1. Pursuing multiple defendants and causes of action, including against a company not incorporated at the time of the original Facebook post

2. Making an "elaborate case" suggesting Ms. Peterson's animal rights activism was "a ploy for making money"

3. Conducting cross-examination in a way that made serious allegations about tax impropriety that were unfounded and misleading

4. Focusing significantly on Ms. Peterson's financial affairs, which Chief Justice Quinlan found unnecessary for vindicating the plaintiffs' reputations

Quinlan CJ stated that "a party that conducts proceedings in that way should expect that it has costs consequences." This demonstrates that how parties choose to litigate defamation claims—particularly their focus, tactics, and treatment of opposing parties—can directly impact costs outcomes despite the statutory presumption.

Practical Implications for Litigants

The McIntosh decision offers several practical lessons for litigants:

1. Early resolution is crucial: The court described the settlement offers as revealing "the anatomy of a lost opportunity at resolution and... the metastatic effect that legal costs have on the prospect that proceedings can sensibly be resolved." Chief Justice Quinlan observed that much of the harm suffered by the plaintiffs could have been avoided if the matter had been resolved early.

2. Make reasonable settlement offers: Defendants should make genuine attempts to resolve matters with reasonable offers. The sum of $2,000 was deemed "simply unreasonable" even at an early stage.

3. Consider proportionality: In McIntosh, the court noted that some claims (particularly the clinic's claim) were relatively minor in monetary terms and even fell within the monetary jurisdiction of the Magistrates Court jurisdiction.

4. Focus on reputation restoration: Defamation proceedings should focus primarily on vindicating reputation rather than attacking the defendant's character beyond what is necessary for the claim.

5. The "interests of justice" exception has meaningful application: Even when the statutory preconditions for indemnity costs are met, courts retain a genuine discretion to make different orders where the interests of justice require.

Distinguishing Indemnity Costs from Special Costs Orders

It's important to note that the judgment in McIntosh also addressed a separate costs issue: whether to make a "special costs order" under s 141(3) of the Legal Profession Uniform Law Application Act 2022 (WA) to remove limits imposed by the relevant costs determinations. This is distinct from the question of indemnity costs under the Defamation Act.

While the court declined to award indemnity costs under s 40(2) of the Defamation Act, it did make a limited special costs order allowing:

• Removal of time limits for preparation of the case

• An increased hourly rate for counsel (to match senior counsel rates)

This highlights that courts have multiple tools for addressing costs and will apply them proportionately based on the specific circumstances of each case.

Conclusion

The "interests of justice" exception in s 40(2) of the Defamation Act provides courts with important flexibility to ensure costs orders reflect the overall conduct of proceedings and achieve fairness between parties. As demonstrated in McIntosh v Peterson [No 3] [2024] WASC 446, even where a party has technically triggered the presumption in favour of indemnity costs, the court will look holistically at all relevant circumstances.

For defamation practitioners, this case serves as an important reminder that how you conduct litigation—from the framing of claims to cross-examination tactics—can significantly impact costs outcomes. The interests of justice require not just consideration of who won, but how they won, and whether their conduct throughout the proceedings merits the significant benefit of indemnity costs.

Individual Sensitivities in Defamation Damages: Taking Plaintiffs As You Find Them

Introduction: The Michelmore Case

In a recent Western Australian defamation case, Michelmore v Brown [No 3] [2025] WASC 9, the Supreme Court of Western Australia awarded damages to a legal practitioner who had been defamed by former clients. The case involved two defamatory emails – one sent by a single defendant and another sent by multiple defendants – containing statements that seriously impugned the lawyer's integrity and professional competence. Justice Tottle found the statements were "grossly defamatory," had "no foundation in fact," and were "wholly indefensible." The court awarded $70,000 for the first email and $90,000 for the second email, with both amounts including aggravated damages.

The Egg-Shell Skull Rule in Defamation

One of the key considerations in assessing damages for defamation is the principle that defendants must "take their plaintiffs as they find them." This concept, similar to the "egg-shell skull" rule in personal injury law, recognizes that individuals may react differently to defamatory publications based on their personal sensitivities and circumstances.

As Justice Tottle noted in Michelmore, citing Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027, "damages for injured feelings, however innocent the publication by the defendant may have been, form a large element in the assessment." This principle acknowledges that the harm caused to plaintiffs by defamatory material often lies more in their own feelings about what others might be thinking about them than in any actual change in the attitudes of others toward them.

Individual Sensitivity and Damage Assessment

When assessing damages in defamation cases, courts consider several factors related to a plaintiff's individual sensitivity:

1. Personal and professional reputation: In Crampton v Nugawela (1996) 41 NSWLR 176, applied in John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291, the court emphasized that damage awards should "reflect the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgment."

2. Subjective impact of the defamation: Courts recognize that the same defamatory statement might affect different plaintiffs in vastly different ways, depending on their personal circumstances, position in society, and psychological makeup.

3. The plaintiff's actual distress: While damage to reputation is presumed and need not be proved, evidence of actual distress can influence the quantum of damages. In Michelmore, the court accepted evidence of the significant distress experienced by the plaintiff, including her testimony that she felt "her stomach had dropped out of [her] body" upon reading one of the defamatory emails.

Balancing Subjective and Objective Elements

Despite the importance of individual sensitivities, courts maintain a balancing approach. As noted in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, there are three purposes served by damages in defamation:

1. Consolation for personal distress and hurt

2. Reparation for harm to reputation

3. Vindication of the plaintiff's reputation

The first two purposes address the subjective harm to the plaintiff, while the third looks more objectively at how others might perceive the plaintiff following the defamation. In Michelmore, Justice Tottle noted that "the sum awarded must be at least the minimum necessary to signal to the public the vindication of the plaintiff's reputation," drawing on principles established in Carson v John Fairfax & Sons Ltd.

Impact of Defendant's Conduct

The court in Michelmore also considered the defendants' conduct in assessing damages. Citing principles from Triggell v Pheeney (1951) 82 CLR 497 and as explored in Cerutti v Crestside Pty Ltd [2014] QCA 33; [2016] 1 Qd R 89, damages may be aggravated by the defendant's conduct before, during, and after publication.

Justice Tottle found that the defendants' failure to apologize and their persistence in maintaining unfounded allegations throughout the proceedings significantly aggravated the plaintiff's injury. This is consistent with the principle articulated in Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254 that a respondent's failure to provide any apology is pertinent to the assessment of damages.

Conclusion

The Michelmore case reaffirms that when assessing damages in defamation cases, courts will consider the individual sensitivities of plaintiffs while balancing this against objective factors. As stated in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, the assessment of damages involves "a mixture of inextricable considerations."

For defendants, this means understanding that the law requires them to take plaintiffs as they find them – with all their unique sensitivities and vulnerabilities. For plaintiffs, it means that the law recognizes that defamation can cause significant subjective harm, even when others might not perceive any change in a plaintiff's standing or reputation.

As defamation law continues to evolve in the digital age, this principle – that damages should reflect both the objective harm to reputation and the subjective harm to feelings – remains a cornerstone of how courts approach the complex task of compensating defamation victims.

Defamatory Imputations: How Courts Determine What Words Really Mean

Recent Case Example: JABBIE v GBANGAYE

In a recent Supreme Court of Western Australia decision, JABBIE v GBANGAYE [2025] WASC 73, the Court examined defamation arising from a podcast that was livestreamed on Facebook. The case involved two women who had come to Australia as refugees from Liberia. The defendant, a self-styled "talk-show host," made serious allegations about the plaintiff during a podcast discussing the murder of Janet Dweh. The plaintiff's estranged husband had been arrested and charged with the murder three weeks prior to the podcast. The Court found that the defendant made statements implying the plaintiff was complicit in the murder, that she was a violent person, that she had harassed the victim, and that she practiced witchcraft. These defamatory statements were widely viewed within the Liberian community in Australia and internationally. The plaintiff was awarded $325,000 in general damages and $70,400 in special damages.

Understanding Defamatory Imputations

When determining whether something is defamatory, courts consider two key questions: what meaning do the words convey (the imputation), and is that meaning defamatory? In legal terms, an "imputation" refers to the meaning that ordinary reasonable people would take from the publication.

As noted in Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506, these questions involve "the meaning of the words used (the imputation) and the defamatory character of the imputation." Both are assessed through the lens of the ordinary, reasonable reader or viewer.

The Ordinary Reasonable Person Standard

Courts apply a single standard—that of the "ordinary reasonable person"—which yields a single meaning from potentially competing interpretations. This approach was affirmed in Trkulja v Google [2018] HCA 25; (2017) 263 CLR 144 at [32], where the High Court described the exercise as "one in generosity and not parsimony."

The ordinary reasonable person:

• Is not a lawyer examining the publication with legal scrutiny

• Views the publication casually

• May be prone to "loose thinking"

• Reads between the lines based on general knowledge and experience

• Draws implications much more freely than a lawyer, especially derogatory ones

• Takes into account emphasis given by headlines or captions

This means that courts interpret potentially defamatory content from the perspective of how average people would understand it, not through technical legal analysis.

Different Types of Imputations: Natural Meaning and True Innuendo

Defamation law recognizes two ways imputations can arise:

Natural and Ordinary Meaning

This refers to the meaning that would be understood by an ordinary reasonable person without any special knowledge. In JABBIE v GBANGAYE, statements like "you Charlene will never go free ... your hands are behind the death of Agnes" conveyed a clear imputation that the plaintiff was complicit in murder through their natural and ordinary meaning.

True Innuendo and Extrinsic Facts

True innuendo arises when words seem innocuous on their face but become defamatory when combined with extrinsic facts known to the audience. For example, in Lewis v Daily Telegraph Ltd [1964] AC 234, Lord Reid explained that a statement might appear innocent to those without special knowledge but defamatory to those who possess certain background information.

Extrinsic facts are facts not contained in the publication itself but known to some or all of the audience. These facts can transform seemingly innocent statements into defamatory ones. For a true innuendo case to succeed, a plaintiff must:

1. Plead the extrinsic facts

2. Prove these facts were known to at least some recipients of the publication

3. Demonstrate how these facts, combined with the published words, conveyed the defamatory imputation

While not explicitly analysed in the JABBIE v GBANGAYE case, true innuendo represents an important concept in defamation law that deserves exploration. This differs from what happened in JABBIE, where the court found the imputations about witchcraft were conveyed through the ordinary meaning of terms like "juju" and "medicine" within the context of the publication. Justice Tottle simply held that "the ordinary reasonable viewer of the podcast would understand the references to juju and witchcraft to refer to the plaintiff" without requiring any special knowledge outside the publication.

A Step-by-Step Guide to Drafting and Proving True Innuendo Imputations

To illustrate how true innuendo works in practice, consider the following fictional example:

Imagine a local newspaper publishes: "Dr. Thompson was seen leaving the Grand Hotel at midnight after visiting Room 712." On its face, this statement merely describes a doctor leaving a hotel, which is not inherently defamatory.

Step 1: Identify the Extrinsic Facts

The plaintiff (Dr. Thompson) must first identify the extrinsic facts that transform the innocent statement into a defamatory one:

• Dr. Thompson is a respected family physician who serves as an examiner for medical certification tests

• Medical certification examinations were scheduled at the university the following day

• The Grand Hotel is where out-of-town students stay when taking these exams

• Room 712 was occupied by a student who was scheduled to take the exam the next day

• The medical board has strict rules prohibiting examiners from having private meetings with students before examinations

Step 2: Draft the True Innuendo Imputation

The plaintiff must clearly articulate how these extrinsic facts combine with the published words to convey a defamatory meaning: "The words meant and were understood to mean that the plaintiff was compromising the integrity of medical examinations by privately meeting with a student before their test, thereby acting unethically, violating professional standards, and abusing his position of trust as an examiner."

Step 3: Plead the Publication, Words, and Extrinsic Facts

In court documents, the plaintiff must carefully articulate all elements of the case:

• Quote the exact words published: "Dr. Thompson was seen leaving the Grand Hotel at midnight after visiting Room 712."

• Clearly identify the publication details (date, newspaper name, circulation numbers, page number)

• Explicitly plead each extrinsic fact, including:

• Dr. Thompson's role as a medical examiner for upcoming certification tests

• The scheduled examinations at the university the following day

• The Grand Hotel's status as lodging for out-of-town exam candidates

• Evidence that a student scheduled for examination was staying in Room 712

• The medical board's ethical guidelines prohibiting private meetings between examiners and candidates prior to examinations

• Connect these facts to show how readers with knowledge of these circumstances would understand the defamatory meaning implied by the otherwise innocent statement

Step 4: Prove Knowledge of Extrinsic Facts

The plaintiff must demonstrate that at least some recipients of the publication possessed knowledge of the extrinsic facts:

• Testimony from fellow medical professionals who read the article and recognized Dr. Thompson as an examiner for the upcoming tests

• Evidence showing awareness within the medical community about which students were staying at the Grand Hotel for examinations

• Witness statements confirming common knowledge about Room 712's occupant

• Documentation of the medical community's familiarity with ethical guidelines regarding examiner-candidate interactions

• Evidence that readers connected the timing of the hotel visit with the next day's scheduled examinations

Step 5: Demonstrate How Meaning Arises

The plaintiff needs to establish the logical connection between the published words and the extrinsic facts:

• Explain why readers with knowledge of the examination schedule would find significance in a midnight visit to a specific room

• Demonstrate how readers familiar with medical ethics would interpret a late-night visit to a candidate's hotel room as improper

• Show why the combination of Dr. Thompson's examiner status, the timing of the visit, and the identity of the room's occupant would lead reasonable readers to infer unethical conduct

• Present evidence that readers actually drew this conclusion upon reading the article

Step 6: Address Potential Defences

Anticipate and counter potential defences the publisher might raise:

• If the defendant claims the extrinsic facts were not sufficiently widespread, provide evidence of their community knowledge

• If the defendant argues readers would not draw defamatory meaning even with knowledge of these facts, present testimony from actual readers who did make this connection

• Counter any claim of an "innocent explanation" by showing why readers would more likely infer impropriety given the specific context

• Address potential truth defences by distinguishing between the literal truth of the statement (Dr. Thompson visited the room) and the false defamatory imputation (that he was compromising examination integrity)

• Prepare for arguments that the statement was merely opinion by demonstrating that the imputation presents as a factual assertion

These steps form a comprehensive approach for establishing and proving a true innuendo case, showing how seemingly innocent words become defamatory when interpreted by readers who possess specific background knowledge about the situation.

When Imputations Are Conveyed

In JABBIE v GBANGAYE, the defendant admitted some imputations were conveyed by her words but denied others. The Court found that serious imputations were indeed conveyed, including that the plaintiff was complicit in murder.

It's important to note that the vehemence with which statements are made can overwhelm qualifiers like "allegedly" or "I believe." As Justice Tottle observed, "in the context of a publication on social media the ordinary reasonable viewer would not have attached any significance to the words 'allegedly' or 'I believe'."

No Defence for Repeating Rumours

A critical principle reinforced in this case is that publishing defamatory statements about a person prefaced by qualifying words does not protect the publisher from liability. As Lord Denning colourfully stated in Associated Newspapers Ltd v Dingle [1964] AC 371 at 410:

"Our English law does not love tale-bearers. If the report or rumour was true, let him justify it. If it was not true, he ought not to have repeated it or aided its circulation. He must answer for it just as if he had started it himself."

This principle was similarly expressed in King v Telegraph Group Ltd [2004] EWCA Civ 613 at [22], where the Court held that a person who repeats a defamatory statement about another can only succeed in justifying the statement by proving the truth of the underlying allegation, not merely the fact that the allegation has been made.

The Defamatory Character of Imputations

For an imputation to be defamatory, it typically:

• Lowers a person's standing in the community

• Lowers the estimation in which people hold that person, or

• Causes people to think less of the plaintiff

As established in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460, the test is whether the publication would tend to lead ordinary reasonable members of society to think less of the plaintiff.

In practice, once the meaning of words is determined, whether that meaning is defamatory is often straightforward. In JABBIE v GBANGAYE, the imputations that the plaintiff was complicit in murder, practiced witchcraft, and was violent were plainly defamatory.

Context Matters

The context in which statements are made can significantly influence how imputations are understood. In social media publications, inflammatory and emotive language can amplify the defamatory nature of statements. The Court in JABBIE v GBANGAYE noted that the defendant's comments "were calculated to excite condemnation of the plaintiff" and that she "made no attempt at balance or restraint."

Conclusion

Understanding how courts determine defamatory imputations is crucial for both plaintiffs and defendants in defamation proceedings. The law recognizes that words can carry meanings beyond their literal interpretation and that these meanings are assessed from the perspective of ordinary people, not legal experts.

Whether you're a content creator, social media user, or someone potentially affected by defamatory content, it's important to understand that courts look beyond technical qualifiers like "allegedly" to determine the real message conveyed to audiences. As JABBIE v GBANGAYE demonstrates, the repetition of serious allegations, even when framed as rumours or speculation, can lead to substantial damages when they harm someone's reputation.

The complexities of true innuendo and extrinsic facts further highlight the need for careful consideration of context and audience when assessing potential defamation risks. What might seem harmless to one audience could be deeply defamatory to another who possesses the relevant background knowledge.

Common Law Qualified Privilege in Australian Defamation Law

Introduction

The law of defamation serves to protect personal reputation, but there are situations where the law recognizes that potentially defamatory statements should be protected for the broader public good. One such protection is the defence of qualified privilege, which provides immunity for certain communications made in specific contexts. As a defence, qualified privilege acknowledges that in some circumstances, freedom of communication outweighs the protection of reputation. This blog post explores the principles and application of common law qualified privilege in Australian defamation law, examining key cases that have shaped this important area.

The Conceptual Basis of Common Law Qualified Privilege

The foundation of common law qualified privilege was articulated in the landmark case of Adam v Ward [1917] AC 309. The House of Lords outlined that a privileged occasion arises where:

"the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential."

This reciprocity requirement remains the cornerstone of qualified privilege. The defence acknowledges that there are situations where society benefits from the free exchange of information, even if that information might be defamatory. As noted in Toogood v Spyring (1834), the defence protects communications that are made "for the common convenience and welfare of society."

In essence, qualified privilege creates a rebuttable presumption against malice. Where an occasion of qualified privilege exists, the plaintiff must prove "malice in fact" to defeat the defence. Whether an occasion is privileged is a question of law for the judge to decide, assuming the facts are not in dispute.

Categories of Qualified Privilege

Over time, the courts have recognized several categories where qualified privilege may apply. These are not exhaustive but represent common situations where the defence has been successfully invoked.

Statements Made Under a Duty to a Person with an Interest

This category applies when the speaker has a duty to make the statement to someone who has either a duty to receive it or an interest in receiving it. In Beach v Freeson [1972] 1 QB 14, a member of Parliament wrote to the Law Society and the Lord Chancellor complaining about the conduct of two solicitors. The court held that the MP had a social or moral duty to communicate this information, particularly as he had received multiple complaints about the firm.

Interestingly, while the Law Society's interest in receiving such information was clear (as it had disciplinary powers), the court also found that the Lord Chancellor had a sufficient interest despite lacking direct disciplinary authority. This was because solicitors were officers of the court, and the Lord Chancellor was ultimately responsible for the machinery of justice.

Commercial contexts can also give rise to qualified privilege. In Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366, the High Court held that the defence was available to a publisher of an occupational health and safety bulletin containing defamatory allegations. The court emphasized that what distinguished this publication from other paid publications was "the narrow focus of both its subject matter and its readership" which created the necessary reciprocity of duty or interest.

Statements in Public Functions or Election Campaigns

Another category includes statements made in carrying out public functions or participating in election campaigns. Debate within municipal councils on local affairs typically attracts qualified privilege, as does certain election campaign communications.

In Braddock v Bevins [1948] 1 KB 580, the Court of Appeal took a robust approach to qualified privilege regarding election addresses. The court found that statements in a candidate's election address concerning an opposing candidate were privileged, provided they were relevant to matters electors would consider in casting their votes. The court reasoned that:

"The task of the electors under democratic institutions could not be satisfactorily performed if such a source of relevant information bona fide given were to be cut off by the fear of an action for libel."

This approach was somewhat tempered in Australian jurisprudence by Lang v Willis (1934) 52 CLR 637, where Dixon J and Evatt J took the view that participation in an election campaign did not create a general occasion of qualified privilege and that defamatory statements made during a public address in such a campaign would normally not be entitled to that defence.

However, in Roberts v Bass (2002) 194 ALR 161, the High Court revisited this issue. Several judges concluded that qualified privilege should attach to:

"statements by electors, candidates and their helpers published to the electors of a state electorate on matters relevant to the record and suitability of candidates for the election."

Protection of Family and Personal Relationships

The courts have also recognized that family and personal relationships might give rise to qualified privilege, though there is limited recent authority on this. In Watt v Longsdon [1930] 1 KB 130, Scrutton LJ acknowledged the difficulty in this area, noting:

"It is impossible to say he is always under a moral or social duty to do so; it is equally impossible to say he is never under such a duty. It must depend on the circumstances of each case."

This area demonstrates the significant judicial discretion involved in determining qualified privilege, with courts needing to evaluate whether a moral or social duty exists based on the specific relationship and circumstances.

Statements for the Protection of One's Own Interests

A fourth category protects statements made by a person in furtherance of their own interest to someone who has a duty to receive the information or an interest in receiving it. This requires the same reciprocity element as other categories.

An example would be a shareholder in a company bringing alleged wrongdoing by directors to the attention of regulatory bodies or the Stock Exchange. The shareholder has an interest in addressing the misconduct, and the regulatory bodies have an interest or duty in receiving such information.

In Aktas v Westpac Banking Corporation Ltd (2010) 268 ALR 409, the High Court considered whether a bank's endorsement "Refer to Drawer" on dishonored cheques was privileged. A majority of the court found no reciprocity of interest between the bank and payees where the drawer had sufficient funds to meet the cheques, illustrating the nuanced analysis this category requires.

Responding to an Attack

A well-established category of qualified privilege protects statements made in response to an attack by the plaintiff. In Loveday v Sun Newspapers Ltd (1938) 59 CLR 503, the High Court recognized that defamatory statements made in response to an original attack may be entitled to qualified privilege.

The extent of permitted response was addressed in Penton v Calwell (1945) 70 CLR 219, where Dixon J noted that:

"the purpose of the privilege is to enable the defendant on his part freely to submit his answer, whether it be strictly defensive or be by way of counter-attack, to the public to whom the plaintiff has appealed or before whom the plaintiff has attacked the defendant."

However, the defence is not unlimited. The response must be proportionate, and as noted in Kennett v Farmer [1988] VR 991, a riposte to a retort (a response to a response) generally wouldn't be protected. The court reasoned that allowing an initial defamer a privileged right of reply to the victim's defence would "severely inhibit his own rights of self defence" and allow a defamer to benefit from their own tortious act.

Complaints About Public Officials

A person who claims to have been adversely affected by a public official's conduct will normally receive the protection of qualified privilege when bringing a complaint to the appropriate official body, assuming no express malice. Courts have shown considerable latitude in such cases.

In Mowlds v Fergusson (1940) 64 CLR 206, a senior police officer made a report containing defamatory material at his superiors' request. He showed the report to the former Commissioner of Police who had resigned. The High Court considered this publication was made on an occasion of qualified privilege, as the former commissioner might be called upon to confirm or refute the defendant's report and had a real moral concern in receiving information about his past administration.

Irrelevant Statements and Loss of Privilege

The protection of qualified privilege only extends to statements relevant to the occasion in question. As articulated in Adam v Ward [1917] AC 309:

"Anything that is not relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege will not be protected."

The High Court in Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 framed the question as "whether the matter which defamed the appellant was sufficiently connected to the privileged occasion to attract the defence."

When a communication contains both relevant and irrelevant defamatory content, qualified privilege only attaches to the relevant part. Moreover, the inclusion of irrelevant defamatory content may provide evidence of malice and potentially destroy the privilege of the relevant portions as well.

It's important to note that the violence of language used does not affect whether there is an occasion of qualified privilege or whether the communication is relevant to that occasion, though it may be evidence of malice.

Media and Qualified Privilege

The courts have consistently rejected any general duty on mass media publishers to communicate matters of public interest to their audience. In Loveday v Sun Newspapers Ltd (1938) 59 CLR 503, Latham CJ stated:

"There is, however, no principle of law which entitles a newspaper to publish a defamatory statement of fact about an individual merely because a statement is made in the course of dealing with a matter of public interest."

Courts distinguish between matters in which the public might be "interested" in the sense of curiosity, and matters in which specific readers might have an "interest" due to their connection with the subject matter. As Higgins J noted in Howe v Lees (1910) 11 CLR 361, interest is used:

"in the broadest popular sense, as when we say that a man is 'interested' in knowing a fact — not interested in it as a matter of gossip or curiosity, but as a matter of substance apart from its mere quality as news."

The High Court in Lange v Australian Broadcasting Corp (1997) 189 CLR 520 observed that "only in exceptional cases has the common law recognised an interest or duty to publish defamatory matter to the general public." This decision extended qualified privilege to publications on government and political matters, but subject to the requirement that the publisher's conduct be reasonable—a more stringent test than the traditional qualified privilege defence.

Ancillary Privilege

An important extension of qualified privilege is the concept of "ancillary privilege," which protects technical publications to persons who don't have a legitimate interest in receiving the information but are involved in the process of communication. For example, a stenographer who types a letter of complaint that contains defamatory material would be protected by the same privilege that attaches to the sending of the letter to the appropriate body.

As Lord Diplock noted in Bryanston Finance Ltd v de Vries [1975] 1 QB 703, this is "not an original privilege but one ancillary to, and dependent on, the existence of a privilege for the publication of the defamatory contents of the letter to its addressee."

Conclusion

Common law qualified privilege remains a vital defence in Australian defamation law, balancing the need to protect reputation with the importance of free communication in specific contexts. The defence's foundation rests on the reciprocal duties or interests between the publisher and recipient, with various categories developed through case law.

While qualified privilege offers significant protection in certain circumstances, it is not unlimited. The information must be relevant to the occasion, and the defence can be defeated by proof of malice. For media organizations, the traditional defence has limited application, though constitutional considerations have extended the protection for publications on government and political matters.

Understanding the principles and limitations of qualified privilege is essential for both those making potentially defamatory statements and those who believe their reputation has been harmed. As with many areas of defamation law, each case turns on its specific facts and requires careful analysis of the relationship between the parties and the context of the communication.